That was quick – Sacketts: 1 – EPA: 0

21 Mar 2012

Earlier this year, I told you about the Sacketts (here) who were arguing to the US Supreme Court over a wetland issue.  The case before the Supreme Court did not deal with the wetland issue itself but with the question of “pre-enforcement review” under the Clean Water Act.  In that case, the EPA argued that a property owner may not obtain judicial review of an EPA wetland order even though the EPA has not yet brought its own lawsuit. In other words, could the EPA force the Sacketts into having to decide to do what EPA told them to do or risk facing gigantic fines when EPA got around to suing them?

Well, the Supreme Court has spoken unanimously, finding that the EPA’s order was final and subject to court review because it had “all of the hallmarks of APA (Administrative Procedures Act) finality that [the Court’s] opinions establish.”

  • The Court noted that the EPA order “determined rights or obligations” because it obligated the Sacketts to restore their property according to an agency-approved Restoration Work Plan, and to give the EPA access to their property and to records and documentation related to the conditions at the Site.
  • Also, “legal consequences flow” from issuance of the order.  The order exposes the Sacketts to double penalties in a future enforcement proceeding.  It also severely limited the Sacketts’ ability to obtain a permit for their fill from the Army Corps of Engineers.
  • The issuance of the compliance order also marked the “consummation” of the agency’s decision making process which was not subject to further review, except at the initiation of the EPA.

Now they get to fight about whether there were regulated wetlands at all.

Most derisively, Justice Scalia, for the Court stated that ” The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.”

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